The report is a follow-up to a more comprehensive baseline Brennan Center study published in 2019 that showed Nebraska to be an underperformer in diversity. At the time, Nebraska was one of 13 states that had not seated a person of color since at least 1960, which was the earliest year for which comprehensive data was available.
In the latest report, which tracked the data through mid-May, researchers found a slight increase in demographic and professional diversity in state supreme courts nationally over the past year. During that time, the percentage of people of color on state high court benches increased by one percentage point to 19%, and the share of women also increased by one percentage point to 42%.
In Nebraska, the governor appoints new Supreme Court justices from a list of eligible nominees provided by the Judicial Nominating Commission.
Justices run for office during the first general election (voters check yes or no) that comes after they have been on the court for three years. Subsequent terms run for six years.
Source: Nebraska Judicial Branch
Last year some states reached so-called “diversity milestones,” the report said. Meanwhile, in Nebraska, where the governor appoints the justices, the composition of the state supreme court remained unchanged.
Among the examples of diversity gains cited in the report was the Illinois Supreme Court, which now has a higher number of female justices for the first time in its history. (Three of the seven justices are black.)
And Nevada, which just swore in its first black person to the state high court, now has a woman as both its first black and Asian-American justice.
Nebraska’s composition remains an all-white body of two females and five males.
Nebraska’s Supreme Court outranks at least seven other states in terms of female representation: six states have only one woman on their Supreme Court; All men are in a state.
Laura Strimple, a spokeswoman for Governor Jim Pilen, said Pilen has not yet had the opportunity to appoint anyone to the state Supreme Court.
He further added, “That being so, the Governor shall appoint the most qualified candidate advanced to him by the Judicial Nominating Committee, regardless of race, gender or religious affiliation.”
Powers said the leadership pipeline and law school hiring practices help determine what a state supreme court looks like.
Duties of Supreme Court
The Superior Court of Nebraska consists of a chief justice and six associate justices who hear appeals and provide administrative leadership for the state judicial system.
The High Court has the right to be the original court in which a case is heard in certain circumstances, and to hear all appellate cases relating to capital punishment, life imprisonment or constitutional questions.
Judges regulate the practice of law in Nebraska, handle attorneys’ admission to state bar associations and attorney discipline, and also appoint attorneys to committees on discipline and professional responsibility.
Source: Nebraska Judicial Branch
Corey Steele, administrator of the Nebraska State Courts, said he has seen the state make efforts to increase judicial diversity. For example, he cited a program that goes “backwards” for high school students. The Supreme Court and Court of Appeals meet periodically in high schools to hear oral arguments and to generate interest in the legal profession.
He said courts have sat at various schools in Nebraska, including Schuyler and Omaha.
The state bar association, through its diversity section, offers a variety of programs to explain the judicial nomination process and encourage diverse applicants to apply, said executive director Liz Neely.
Although not specific to the judgeship, Neely noted the work of the nonprofit Nebraska Legal Diversity Council, which promotes inclusion in the state’s legal profession. Constituted in 2021, the council was partially set up by state bar associations.
Neely credits the University of Nebraska College of Law and the Creighton University School of Law for their efforts to attract more underrepresented populations to law school.
That said, when it comes to state supreme courts, change can be somewhat slow because vacancies don’t happen often. There have been no openings in Nebraska since Justice Papik was appointed in 2018, he said.
Currently, 10 of the 146 overall judges in the state identify as a person of color — five black judges, three Hispanic, one Native American and one Asian American, Steele said. (This includes, in addition to the Supreme Court, the courts of appeals, district, county, juvenile and workers’ compensation courts.)
The Brennan researchers also noted that Nebraska is one of 16 states and the city of Washington, D.C., with a Hispanic population greater than 10%, yet no justices on the Latino Supreme Court. Nebraska was 12% Latino in the 2020 census.
Brennan researchers say many factors drive Lack of diversity, including unequal access to leadership positions in the legal profession and a history of racial and gender discrimination.
Powers points out that a judge’s background is no guarantee that he or she will make a judicial decision.
However, she and co-author Alicia Bannon, director of the center’s Judiciary Program, say the public is generally better served by a judiciary that reflects the diversity of the population.
The report states, “Among other things, research has shown that judicial diversity leads to increased political engagement among young people, richer jurisprudence, more nuanced deliberations and stronger public trust in the court system. “
In other national findings:
- Eighteen states have zero Supreme Court justices who publicly identify as a person of color, including Nebraska and 11 other states where people of color make up at least 20% of the population. As of the 2020 census, people of color made up 24% of Nebraska’s population.
- Only 20% of state supreme court seats are held by people of color, even though people of color make up more than 40% of the US population.
- 58% of the High Court seats are held by men.
- Four of the five states with the largest populations of Native Americans per capita have no Native American judges. (The four are Alaska, Montana, New Mexico and South Dakota.)
- Of the five states with the largest Asian American populations per capita, two have no Asian American judges (the two are New Jersey and New York).
- The report termed the low representation of women as shocking as at the beginning of 1985, 40% of law students were women and since 2016 their number in law schools has exceeded that of men.
- Of the 32 new justices appointed or elected by May 2022, 15 are women, 17 are men and 25 are white.
- Of the 32, eight have experience as prosecutors and six are former public protectors. The report says this reflects a “slight increase” in professional diversity in state supreme courts, but remains an “overwhelming representation” of former prosecutors – 38% of current justices are former prosecutors and 9% are former public defenders.